- - Sunday, January 11, 2015


When bureaucrats in the government think Congress isn’t doing enough to push along an agenda, federal agencies still have the responsibility to regulate fairly and judiciously. But that’s sometimes no fun. On President Obama’s watch, the Environmental Protection Agency and the Consumer Financial Protection Bureau, for two examples, continue to merrily scoot around Congress to impose their own agendas.

The most aggressive agency of all is the Federal Communications Commission (FCC), evading regular order and picking its own private-sector favorites. “The FCC,” warns Rep. Darrell Issa of California, a Republican, “is exceeding its legislative mandate.” Three recent examples show how.

Despite clear evidence that Congress intends to address the issue of net neutrality with legislation, the FCC intends to bypass Congress to write controlling regulations next month, including the reclassification of the Internet as a Title II telecommunications service.

This would enable the FCC to micromanage with outdated law originally written to regulate telephone and radio service. This would kill innovation and limit Internet options, and most members of Congress oppose the scheme. The FCC would make these dramatic changes without a cost-benefit analysis or any demonstrated need for such change.

The FCC evaded the usual order of operations to advance a “data roaming” measure that could drastically reduce investment in wireless facilities and weaken competition in the wireless market. By capping the fee that T-Mobile must pay to use the cellular telephone towers of competitors, which has drawn the ire of the two Republican members of the FCC, the agency picked its own winners and losers, disrupting the free market.

Worse, FCC Chairman Tom Wheeler used what is called a sub-bureau order, without taking a vote. “I didn’t just go through the confirmation process in order to have bureaus and advisory committees make decisions that should be made by commissioners,” says Commissioner Michael O’Reilly. This strongly suggests that Mr. Wheeler ignored the other commissioners because he reckoned they would vote against the order.

Digital television standards have become antiquated and largely irrelevant in the face of rapidly changing television viewing habits. The FCC requirements, imposing Advanced Television Systems Committee standards, add $5 to the price of a new TV set sold in the United States. This may not seem like much, observes Andrew Langer of the Institute for Liberty, but multiplied by the 40 million new television sets bought each year, it becomes an annual tax of $200 million.

With more American viewers abandoning conventional television for other ways of getting their news and entertainment, such as smartphones and the Internet, the big winner is the Denver-based licensing firm known as MPEG LA. This is not good.

“The government’s role in our lives must be measured,” says House Majority Leader Kevin McCarthy, “limited in its ambitions, constitutionally based and focused on the big things that only governments can address.” Tinkering with how Internet services can be sold, needlessly harming cellphone companies and requiring consumers to pay an unnecessary fee to buy a new television set, shouldn’t be a role for the unelected and unaccountable bureaucrats at the FCC. That stifles innovation and hurts everyone.

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